Thursday, October 23, 2003

A reader pointed me to this article on the Do Not Call list by Bob Levy of the Cato Institute, suggesting that it might change my mind on the subject. Cato is noble organization, of course, and it has many fine people on its staff, Levy among them. But I think his logic in the article is strained, as has been the logic of other libertarian DNC-opponents.

Just to be clear about my own position: (1) I think the DNC list is consistent with libertarian principles, but not required by them. Other mechanisms, including some private ones, might be superior. (2) I also think that a federal DNC list is acceptable under federalist principles, because interstate commerce is clearly involved. The Constitution’s commerce clause has been much abused, but I don’t think the DNC is such an abuse. (3) I think that if we have a DNC list, it should not exempt political and charitable callers. There should either be one list with all types of telemarketers, or more than one list so the phone-owner can choose. That said, I think some protection is better than no protection, so even the list-with-a-loophole would be acceptable.

And now for a friendly fisking of Levy’s article. I say friendly because, again, I respect Levy and usually agree with him. (Note: this is not a complete fisking, because I am leaving out some passages of the article.)

But constitutional rights cannot be overridden by temporal majorities – not 51 percent of the people or even 91 percent of the people. And the court has the final word when it comes to the Constitution. A federal judge in Denver already has held that no-call prohibitions on telemarketers – with exemptions for calls that are arguably more intrusive, like those from charities, polling organizations, and (you guessed it) politicians – violate the First Amendment. Speech may not be suppressed based on its content, said the judge.

So the judge’s decision was based on the differential treatment of two different types of call. That means, presumably, that a no-loophole DNC list would fit the bill. Thus, it’s overreaching to say that a DNC list is in principle a violation of constitutional freedom of speech as interpreted by the courts. Yet that is the clear implication of the article: that the DNC list should be scrapped, not amended to close the loophole.

But stepping away from current constitutional interpretation, let’s take this from the libertarian standpoint. Speech rights are ultimately property rights; you don’t have a right to give a speech on my front lawn if I don’t want you to. Telemarketers don’t have a right to ring your telephone if you’ve given them advance warning not to. Seen from this standpoint, allowing political and charitable callers to continue calling you over your clear objections means allowing them to violate your rights. In other words, the discriminatory DNC protects you against some property violations, while allowing others to continue. It’s pretty bizarre to hear a libertarian arguing that the ability of some people to violate your rights justifies allowing others to violate your rights as well!

[T]he Court's distinction between commercial and non-commercial speech has never been coherent. When someone advertises a political book, promotes a paid political event, or markets merchandise in support of a political cause, the commercial and political implications are inextricably entwined. It's time for an overhaul of the Supreme Court's commercial speech doctrine. Our Constitution protects Klan speech, flag burning, even "gangsta" rap. Surely the right of companies to provide information about their products is no less worth protecting.

On this point, Levy and I agree. But just as Klansmen don’t have a right to ring your doorbell repeatedly after you’ve told them to get off your property, telemarketers don’t have a right to ring your phone repeatedly after you’ve told them to stop.

No-call may be a great idea – but only if the arrangements are controlled by private contract and not by government regulation. A phone customer does not own the lines coming into his home, so he may not restrict their use.

This would be a plausible argument if the phone company had required me to agree, in my terms of service, to allow calls from telemarketers. But I have signed no such agreement, nor did the phone company ask me to. Similarly, my landlord didn’t include a term in my apartment lease forbidding me from putting a “no soliciting” sign on my door. In both cases, I am the renter of someone else’s asset (apartment or phone lines), and so long as my rental agreement doesn’t say otherwise, I can decide how the asset will be used.

Besides, I don’t need the phone lines to make my argument. To make a completed call into my home, telemarketers need to use both the phone lines and my phone. I own my phone, and therefore I can say who can access it.

Once a call enters his house, the customer has a remedy: Hang up. That's not much different than radio or TV. If you don't want to see a commercial, turn off the TV or switch channels. Your ownership of the television doesn't give you the right to prevent advertisers from broadcasting into your living room. Similarly, your ownership of a phone doesn't mean you can suppress usage of incoming lines. If you would rather eat dinner uninterrupted, just turn off the ringer. You can even use caller ID or record your messages and return them selectively.

My radio and TV don’t turn on at random intervals, sometimes early in the morning when I’m trying to sleep, and then stay on until I turn them off again. By the time you can hang-up on a telemarketer, the damage has already been done: you’ve been disturbed. Now, it’s true that I can turn off my phone’s ringer, but doing so blocks all calls, including (say) an emergency call from a friend or relative who’s in the hospital or having car trouble.

The analogy between turning off your TV and turning off your phone is false. A broadcaster’s transmissions don’t “activate” my TV in the same manner that a telemarketer’s calls “activate” my phone. By turning off my TV or changing the channel, I can keep out specific programs at specific times from specific sources; by turning off my ringer, I keep out all calls, wanted or unwanted, mundane or emergency.

The analogy between EMS transmissions and phone lines is also false, because (as noted earlier), even if the phone company owns the phone lines, the phone company has effectively given me renter’s rights over them. I do not, on the other hand, have any ownership claim over frequency bands on the EMS. And again, even if my phone line argument fails, I still have ownership over my phone.

The lines coming into a home are either owned by a private carrier (like Cox or Comcast or Time Warner) or by a common carrier (like BellSouth, Verizon, Quest or SBC). If the lines are owned by a private carrier, the user's contract will control whether and how calls are screened. Almost all private carriers have call-blocking technology. Naturally, carriers would be liable for breach of contract.

See comments above on phone lines. Yes, I could contract with my phone company to block calls, just as I could contract with my landlord to hire security guards to keep out burglars. That doesn’t mean that I can’t also call the cops if someone burgles my apartment.

But if the lines are owned by a common carrier, then government dictates the rules. Indeed, government has placed limits on the ability of common carriers to police their own networks, which must be available to serve all comers. Longer term, the solution is to get rid of the common carrier model and substitute private carriers so the market, rather than government, regulates access.

I agree with Levy on this point. But even under such a regime, if my contract with my carrier did not specify otherwise, I could still employ public means of protecting my property rights.

Proponents of no-call point to the Supreme Court's 1970 Rowan v. U.S. Post Office Department decision. The Court upheld the constitutionality of a scheme whereby each mail recipient could direct advertisers to exclude the recipient from unwanted mailings. But the Post Office is different. First, it's a monopoly and, therefore, affords no opportunity for competitive privacy models.

The Post Office’s monopoly status does make a stronger case, but it’s not necessary for the argument. The existence of a competitive rental housing market doesn’t refute my argument above about calling the cops to catch burglars.

Second, mailboxes can't be turned off the way that phone ringers, radios, and televisions can. Without mail blocking, senders can trespass on recipients' property.

Well, you could refuse to sort your mail and just dump it all into the garbage, but that would mean losing your desired mail as well. Similarly, if you turn off your ringer, you keep out the unwanted calls only by keeping out the wanted calls.

Third, the Post Office scheme allows recipients to choose which particular senders to exclude. Neither Congress nor a government agency categorizes senders in a manner that requires blanket exclusion or blanket access.

The DNC list does not give “blanket access” to callers if you don’t put your name on the list. The DNC list merely give you the option of blanket exclusion. If you choose not to use the list, you can still instruct specific telemarketers to remove you from their lists. (And they are required by law to do so – does Levy oppose that law as well?)